“SECRETARY OF LABOR,Complainant,v.UNITED TECHNOLOGIES, PRATT & WHITNEY,Respondent.Docket No. 90-0660_ORDER _This matter is before the Commission on a Direction for Review enteredby Chairman Edwin G. Foulke, Jr. on November 25, 1991. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. Theterms of the Stipulation and Settlement Agreement do not appear to becontrary to the Occupational Safety and Health Act and are in compliancewith the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order, and we set aside the Administrative LawJudge’s Decision and Order to the extent that it is inconsistent withthe Stipulation and Settlement Agreement. This is the final order ofthe Commission in this case. See 29 U.S.C. ?? 659(c), 660(a), and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: November 18, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY,Respondent.OSHRC Docket No. 90-0660APPEARANCESDonald R. McCoy, Esquire, Associate Regional Solicitor, U.S. Departmentof Labor, Ft. Lauderdale, Florida, on behalf of complainant.W. Scott Railton, Esquire, Reed, Smith, Shaw and McClay, Washington,D.C., on behalf of respondent._DECISION AND ORDER_SALYERS, Judge: Pratt & Whitney Aircraft Group (Pratt & Whitney), adivision of United Technologies Corporation, was issued a citation onJanuary 18, 1990, charging nine alleged serious violations of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (Act). The citation was issued pursuant to an inspection conducted by OSHAIndustrial Hygienist Peter Foreman, who was assigned the inspectionfollowing an incident that occurred on August 23, 1989, when two Pratt &Whitney employees were splashed with a cyanide solution from a chemicaltank.Item 1 alleges a serious violation of 29 C.F.R. ? 1910.94(d)(9)(i) forfailing to instruct all employees working in and around open-surfacetank operations as to the hazards of their respective jobs, and in thepersonal protection and first aid procedures applicable to thosehazards. Item 2 alleges a serious violation of 29 C.F.R. ? 1910.132(a)for failing to provide and to require the use of protective headequipment where employees were exposed to the hazard of potential headinjuries. Item 3 alleges a serious violation of 29 C.F.R. ? 1910.132(a)for failing to provide and to require the use of protective clothing andequipment where employees were exposed to chemical hazards.Item 4 alleges a serious violation of 29 C.F.R. ? 1910.133(a)(1) forfailing to require the use of protective eye and face equipment wherethere was a reasonable probability of injure that could be prevented bysuch equipment. Item 5 alleges a serious violation of 29 C.F.R. ?134(e)(e) for failing to prepare written procedures covering safe use ofrespirators in dangerous atmospheres that might be encountered in normaloperations or in emergencies. Item 6(a) alleges a serious violation of29 C.F.R. ? 1910.145 (c)(2)(i) for failing to use caution signs to warnemployees entering the plating shop that it was a chemical hazard area. Item 6(b) alleges a serious violation of 29 C.F.R. ? 1910.145(c)(3) forfailing to post safety instruction signs in the plating shop where therewas a need for general instructions and suggestions relative to safetymeasures.Item 7 alleges a serious violation of 29 C.F.R. ? 1910.145(f)(5) forfailing to use danger tags on the energy sources and controls for theprocess solution pump for the tank involved in the splashing incidentwhich gave rise to this case. Item 8(a), alleging a serious violationof 29 C.F.R. ? 1910.1200(f)(5)(i), was withdrawn by the Secretary in herpost-hearing brief and will be vacated by the undersigned (Secretary’sbrief, pp. 24-25). Item 8(b) alleges a serious violation of 29 C.F.R. ?1910.1200(f)(5)(i) for failing to have each container in the workplacelabeled, tagged or marked with the appropriate hazard warning. Item8(c) alleges a serious violation of 29 C.F.R. ? 1910.1200(f)(8) byremoving or defacing existing labels on incoming containers of hazardouschemicals. Item 9 alleges a serious violation of 29 C.F.R. ?1910.1200(h) for failure to provide employees with information andtraining on hazardous chemicals in their work area at the time of theirinitial assignment, and whenever a new hazard was introduced into theirwork area.The incident which gave rise to the present case occurred at Pratt &Whitney’s plant located in West Palm Beach, Florida. Approximately8,000 employees work at that plant, which is primarily a research anddevelopment facility for jet and rocket engines (Tr. 1117, 1119). Somemanufacturing work goes on there (Tr. 1118). The employees are mostlyengineers and technicians; there are approximately 1,300 hourlypositions at the plant (Tr. 1119).The plating shop, which is the focus of this case, is located in arectangular room. Two of its sides are approximately 150 feet long. No dimension was given for the other two sides (Tr. 1120). The platingshop at the time of the inspection contained eight rows of open-surfacetanks. The eight rows were designated with the letters A through H. Each row contained six to nine tanks. Each tank in a row would bedesignated by its row letter and the tank’s number in the row, e.g.,A-1, A-2, A-3, etc. (Tr. 1120-1121). Some of the tanks containedchemical solutions and others were rinse tanks (Tr. 1122).In the summer of 1989, Pratt & Whitney began the process of relocatingthe plating lines (Tr. 23, 1141). This involved emptying out the tanks,moving pipes and relocating the tanks (Tr. 23, 1131-1132). Thisrenovation process was going on when the splashing incident occurred onAugust 23, 1989.On that day, William Mousseau and Harry Brockett, both maintenance pipefitters for Pratt & Whitney, were in the plating shop, discussing theirnext assignment. Mousseau estimated that they were standing eight tonine feet from the tank designated as E-3[[1]] (Tr. 21, 38, 118). Thecompany’s \”Safety Engineers Investigation Report,\” introduced intoevidence as Exhibit C-2, states that Mousseau and Brockett were standing\”approximately three to five feet west of the tank.\”While they were talking, an electrician, Donald Stoffel, was working onthe wiring of the tank’s pump. At that time, the pump was disconnectedfrom a filter unit adjacent to the tank. Stoffel momentarily energizedthe pump (bumped it) to check its rotation. Because the pump outlet wasnot connected to the filter unit, some of the tank’s solutiondischarged, splashing Mousseau and Brockett. The solution containedpotassium silver cyanide and potassium cyanide, known as \”silver strikesolution\” (Ex. C-2, Tr. 40-41, 129).Mousseau was wearing blue jeans, a shirt, socks and sneakers. He wassplashed on one calf and foot. Mousseau felt a burning sensation on hisleg and went to a nearby sink and rinsed off his leg (Tr. 41, 43). Dale Seams, a solution technician, happened by and told Mousseau thatmere rinsing of his leg was inadequate and that he needed to take ashower. Mousseau did so and then reported to the medical station (Tr.42-43). Mousseau was examined by a nurse, Ida, and the company doctor,Dr. McCurdy. Mousseau was released from the medical station but wasthen called back. From there Mousseau was taken to the emergency roomat Palm Beach Gardens Hospital (Tr. 43-45).Brockett was splashed with the \”silver strike solution\” from the back ofhis neck down to his socks (Tr. 129). One of the platers walked by andtold Brockett, \”[T]hat’s silver cyanide….that stuff will kill you,that’s deadly stuff in that, deadly poison…\” (Tr. 130). Upon hearingthis, Brockett \”panicked\” and ran out of the plating area. Brockett goton his bicycle and rode all the way back to the maintenance shop toshower off. When he arrived there, he discovered that the shower wasdisconnected. Brockett returned to the plating area, where he was ableto shower (Tr. 131). At that time Brockett felt a slight tinglingsensation. He reported to the medical station and was released. Hewas then ordered back to the medical station and was taken from there tothe hospital along with Mousseau (Tr. 132-133, 140)._ITEM 1: 29 C.F.R. ? 1910.94(d)(9)(i) _29 C.F.R. ? 1910.94(d)(9)(i) provides:All employees working in and around open-surface tank operations must beinstructed as to the hazards of their respective jobs, and in thepersonal protection and first aid procedures applicable to these hazards.A._Res Judicata_Pratt & Whitney argues that the Secretary is barred from bringing thischarge by res judicata. Pratt & Whitney bases this defense on a 1986Review Commission decision, _Pratt & Whitney Aircraft Group, Division ofUnited Technologies Corporation,_ 12 BNA OSHC 1770, 1986 CCH OSHD ?27,564 (No. 80-5830, 1986). In Pratt, the Review Commission reversedthe administrative law judge’s finding that the company was in violationof ? 1910.94(d)(9)(i) and vacated the citation item.The Secretary reiterates in her post-hearing brief her argument made atthe hearing that Pratt & Whitney failed to plead res judicata as anaffirmative defense in its answer as required by Commission Rule36(b)(1), 29 C.F.R. ? 2200.36(b)(1).[[2]] At the beginning of thehearing, Pratt & Whitney moved to amend its answer to plead res judicataas an affirmative defense (Tr. 15). The undersigned granted the motion,noting that the Secretary was aware that Pratt & Whitney intended topursue this defense, and was not surprised or prejudiced by theamendment (Tr. 17-20). That ruling stands. Pratt & Whitney’s resjudicata defense must be addressed.For a prior judgment to bar a subsequent action, it is firmlyestablished (1) that the prior judgment must have been rendered by acourt of competent jurisdiction; (2) that there must have been a finaljudgment on the merits; (3) that the parties, or those in privity withthem, must be identical in both suits; and (4) that the same cause ofaction must be involved in both suits._Ray v. Tennessee Valley Authority_, 677 F.2d 818, 821 (11th Cir.1982). Res judicata bars subsequent litigation in matters that wereactually litigated as well as on every ground of recovery which mighthave been presented. Id., at 822.The _Pratt_ decision was rendered by the Review Commission, a court ofcompetent jurisdiction; the decision was a final judgment on the merits;and the Secretary and Pratt, the parties in the present case, were thesame parties in the previous decision. Thus, the first three elementsof the res judicata defense are met. The fourth element requires that\”the same cause of action must be involved in both suits.\” Here, Prattand Whitney’s defense must fail. The events that gave rise to therespective causes of action took place almost a decade apart, the firstin Connecticut, the present one in Florida. The events involveddifferent employees engaged in different operations. The cause ofaction are not the same and claim preclusion does not apply.B. _Collateral Estoppel_Pratt & Whitney argues that, if the claim preclusion of res judicatadoes not apply to Item 1, then the issue preclusion of collateralestoppel does.Although in a broad general sense the term \”res judicata\” encompassesthe concept of collateral estoppel, strictly speaking they do havedistinct meanings….The doctrine of collateral estoppel precludesrelitigation only of issues that were actually litigated in the initialsuit, whether or not the second suit is based on the same cause of action._Precision Air Parts, Inc. v. Avco Corp.,_ 736 F.2d 1499, 1501 (11thCir. 1984).The formulation of the collateral estoppel standard is well established:(1) the issue at stake must be identical to the one alleged in the priorlitigation; (2) the issue must have been actually litigated in the priorlitigation; and (3) the determination of the issue in the priorlitigation must have been a critical and necessary part of the judgementin that earlier action._McKinnon v. Blue Cross and Blue Shield of Alabama_, 935 F.2d 1187, 1192(11th Cir. 1991), quoting _Greenblatt v. Drexel Burnham Lambert, Inc.,_763 F.2d 1352, 1361 (11th Cir. 1985).It is Pratt & Whitney’s position that the issues in Pratt were identicalto the issues in the present case: \”(1) whether Pratt & Whitney’sinstructions to employees working around open surface tanks comply with? 1910.94(d)(9)(i), (2) whether Pratt & Whitney is required to ensurethat employees working around open surface tanks use personal protectiveequipment, and (3) whether goggles are sufficient eye protection foremployees working around open surface tanks.\” (Pratt & Whitney’s Brief,p. 53). If these were in fact the issues previously litigated, thenPratt & Whitney would have a good argument that the Secretary should beprecluded from litigating them in the instant case. These issues,however, are too broadly drawn. If every employer could preclude theSecretary from bringing an action in this manner, then the purposes ofthe Act could be easily circumvented.Any employer who was charge with the violation of a specific standardwhich was subsequently vacated in a Review Commission hearing would befree afterward to violate the same standard with impunity. For example,in Pratt, the Review Commission vacated the citation for the violationof ? 1910.94(d)(9)(i). If, as Pratt & Whitney claims, this precludesthe Secretary from litigating the issue of whether its \”instructions toemployees working around open surface tanks comply with ?1910.94(d)(9)(i),\” the Pratt would have license forever after to fail togive any instructions whatsoever to its employees working in open tankareas in any of its facilities. This produces an untenable result.It is necessary to examine the underlying factual situations in bothPratt and the instant case in order to determine whether the preciseissues litigated in Pratt are the same here. In Pratt, the allegedviolation occurred in the Electro-Chemical Machine Department (\”ECM\”),where airplane parts were machined to a specified size and shape by anelectro-chemical process. These parts were then moved to the \”picklingline\” where they were \”pickled\” or cleaned, by dipping them into opensurfaced tanks. One of the tanks contained a 35% hydrochloric acidsolution, one tank contained a 35% nitric acid solution, and anothertank contained alkali cleaner. Large parts were moved from tank to tankwith a motorized hoist. An operator controlled the hoist by pressing abutton while standing in front of the pickling line. Employees dippedsmaller parts by hand. Sometimes employees hand-dipped small bottles orbuckets into the acid solution tanks.The Review Commission held that (Id. at 1772):The burn hazard from the acids was obvious to the ECM operators based ontheir knowledge, common sense, and experience. The corrosive propertyof acids is a matter of common knowledge, and as part of theirexperience at the pickling line, P & W’s ECM operators saw that the acidsolutions ate away at the deposits on the metal parts being dipped inthe two tanks.The present case is distinguishable from _Pratt_. In _Pratt_, thecompany’s instructions were deemed adequate under specificcircumstances. The exposed employees were experienced ECM operatorswho worked on a daily basis with acid. The company could rely on theoperator’s experience and the common knowledge that acid can causeserious burns.In contrast, the exposed employees in the present case were pipefittersand an electrician. The hazardous substance was a solution containingcyanide, not acid. The exposed employees did not work in the platingdepartment on a daily basis. While it is common knowledge thatingesting cyanide can be deadly, it is perhaps less well known thatcyanide poses a threat as a result of skin contact.The issue confronted in Pratt was: whether instructions in job hazards,personal protection, and first aid given to experienced operatorsworking on a daily basis with tanks of acid were adequate under thecircumstances. The issue in the present case is: whether instructionsin job hazards, personal protection, and first aid given to maintenancepersonnel unfamiliar with plating operations who were working aroundtanks containing cyanide solutions were adequate under thecircumstances. The issue in the present case is not identical to theissue litigated in Pratt and collateral estoppel does not apply.C. _Instructions as to Hazards_Having concluded that the litigation of Item 1 is not precluded by resjudicata or collateral estoppel, it must now be determined whether Pratt& Whitney violated ? 1910.94(d)(9)(i) in the instant case. The Prattdecision held that the cited standard requires \”employers to giveinstructions that are reasonable under the circumstances.\” Pratt, 12 BNAOSHC at 1722.William Mousseau’s duties at the West Palm Beach facilities were theinstallation and maintenance of plumbing fixtures. At the time of thehearing, Mousseau was working on the plumbing in the plant’s cafeteria(Tr. 22). In August of 1989, Mousseau was working in the platingdepartment helping with its renovation. The job involved \”getting ridof tanks, taking tanks out, moving pipes so they can remove the tanks. It’s basically tearing down one complete section so it can be redone,rebuilt, and getting another section operational and ready to go.\” (Tr.23). Before he was assigned to the renovation work in the platingdepartment, Mousseau had no experience working with the open surfacetanks. Mousseau was given information regarding the contents ofspecific tanks as he moved them (Tr. 25-26).Mousseau usually asked Dale Seams, a solution technician, about thecontents of the tanks as he got around to them (Tr. 27): \”Well, it’slike if we were getting ready to move something or work aroundsomething, you know, he–you know, immediately I’d either ask him or,you know, somebody would say something about it, or I’d find out what’sin that.\”The word \”cyanide\” was stenciled on tank D-1, but Mousseau did notnotice it until after he was splashed with the tank’s contents (Tr.29). No one informed Mousseau about the contents of tank D-1 untilafter the incident because, Mousseau stated, \”basically, I wasn’tworking on the tank itself, so I wasn’t really, you know, concernedwith, you know, having to get anything on me, ’cause I wasn’t working onthat tank.\” (Tr. 30-31).Pratt & Whitney had a labeling system that it used on the tanks toinform employees of the nature and hazards of their contents. Mousseau\”really didn’t know how to read the labels on the tanks.\” (Tr. 33).Brockett testified that he was given no safety instructions regardingworking around the tanks at the time he was assigned to the platingdepartment (Tr. 122-123). Brockett was not aware that tank D-1contained cyanide until after he was splashed with its contents. Hestated that \”the only knowledge that I had received was if I asked.\” (Tr. 124). Brockett received general training as to protective clothingbut nothing specific as to what is required around the tanks ofchemicals in the plating department (Tr. 149-150).In its brief, Pratt & Whitney argues that the employees were providedwith protective equipment, that there were signs in the platingdepartment warning employees to wear goggles in marked areas, and thatboth employees had attended hazard communication training sessions (Tr.84-88, 206-207, 1332-1333). The hazardous communication training tookplace in 1987 (Tr. 1333). Pratt & Whitney contends that these stepswere sufficient to meet compliance with ? 1910.94(d)(9)(i).In determining the reasonableness of instructions, we must consider suchfactors as the obviousness of the hazard…., the experience of theemployees, the likelihood that an accident would occur, and the degreeof harm that would result from an accident.Id., 12 BNA OSHC at 1722 (citation omitted). Each of these factors willbe considered in turn.(i) _THE OBVIOUSNESS OF THE HAZARD_Neither Mousseau nor Brockett were aware that tank D-1 contained cyanideuntil after they were splashed with its contents. Pratt & Whitneyclaims that the tank was labeled, but Mousseau did not know how to readthe labels. Brockett was not familiar with the labeling system (Tr.147). Furthermore, Brockett testified that tank D-1’s label was \”veryfaded and discolored\” (Tr. 149).Not only was the hazard not obvious to Mousseau and Brockett before theywere splashed, the seriousness of the accident was not clear to theemployees even after learning that they were splashed with a cyanidesolution. Mousseau thought it was sufficient to rinse off his leg in asink. He had to be told to take a shower. The record establishes thatthe hazard of being splashed with a cyanide solution was not obvious toBrockett and Mousseau.(ii)_THE EXPERIENCE OF THE EMPLOYEES_Mousseau and Brockett were pipefitters who worked in all areas of theWest Palm Beach facility. They had no specialized knowledge of theplating department and had not experience in working with the opensurface tanks. The employees received information about the tanks on atank-by-tank basis, and then only if they asked.(iii)_THE LIKELIHOOD THAT AN ACCIDENT WOULD OCCUR_Besides the actual incident that gave rise to this case, Brocketttestified that he accidentally dropped screwdrivers in tanks on twoseparate occasions. On one occasion he was wearing protective gear andon the other he wasn’t (Tr. 195).It is clear that a room containing over fifty open surface tanks (manyof which contain hazardous chemicals) which employees must work aroundpresents the possibility of an accident occurring. In this case, anaccident did occur.(iv) _DEGREE OF HARM RESULTING FROM ACCIDENT_Mousseau and Brockett were fortunate in that they sustained no lastingharm from the splashing incident. Dr. Thomas Wilcox testified thatcyanide is a toxic substance that will kill a person if it is absorbedinto his or her body. The record discloses that cyanide can be absorbedinto a person’s body through the skin (Tr. 1456). A person does nothave to be totally immersed in a vat of cyanide in order to sustain atoxic exposure (Tr. 1452-1453). Cyanide is an extremely poisonoussubstance, \”[A]s little as fifteen milligrams can prove fatal.\” (Tr.1457). The Secretary has established that serious physical harm ordeath can result from an employees’ exposure to cyanide.The hazard to the employees was not obvious to them, the employees werenot experienced in working in the plating shop, an accident was likelyto occur in the shop, and serious physical harm or death could haveresulted from an accident. Under these circumstances, Pratt & Whitneyfailed to give adequate instructions to its maintenance personnel. Mousseau and Brockett were not given any orientation instructions at thetime of their initial assignment, and it was left up to the employees toinquire as to the contents of the individual tanks.Pratt & Whitney was in serious violation of ? 1910.94(d)(9)(i)._ITEM 2: 29 C.F.R. ? 1910.132(a)_29 C.F.R. ? 1910.132(a), in pertinent part, provides:Protective equipment, including personal protective equipmentfor…….head……shall be provided, used andmaintained…….wherever it is necessary by reason ofhazards……encountered in a manner capable of causing injury….OSHA industrial hygienist Peter Foreman observed two millwrights in theplating shop removing the tank and duct work for tank H-3 (Tr. 344,659-660). The tank and duct work were slightly suspended several inchesby crane hoist (Tr. 659, 963). The millwrights were not wearing anyform of head protection. Foreman stated that the millwrights wereexposed to hazards from working beneath the tank and duct work, and alsofrom sharp edges and projections of the steel floor grating (Tr. 323).Donald Cooper was one of the millwrights who Foreman observed working. Cooper testified that Pratt & Whitney had provided him and his crew withhard hats, and that the company had a policy requiring them to wear hardhats whenever there was an overhead hazard. Cooper and the othermillwright had their hard hats with them that day, but were not wearingthem because they perceived no hazards of head injury in the work theywere doing (Tr. 962, 984).It was not possible for anyone to get underneath the suspended tank. The tank was only six inches off the ground. The purpose of lifting thetank was to move it; there was no reason for anyone to get under it (Tr.659, 959). Cooper explained, \”We were only moving it laterally. Wewere bringing it out of one corner, twisting it and sitting it over.\” (Tr. 983).Neither was anyone working beneath the suspended duct work (Tr.964-965). Cooper stated that no one was working directly under thegrating. The millwrights were working below the level of the grating,but off to the side where they were not exposed to the sharp edges ofthe grating (Tr. 965, 967, 979).The Secretary has failed to prove that Pratt & Whitney’s employees wereexposed to the hazard of head injuries. No overhead hazards werepresented in the operations they were performing. Pratt & Whitney wasnot in violation of ? 1910.132(a) for failure to require its employeesto use protective head equipment._ITEM 3: 29 C.F.R. ? 1910.132(a)_29 C.F.R. ? 1910.132(a) also provides, in pertinent part:Protective equipment, including personal protective equipment for eyes,face, head, and extremities, [and] protective clothing….shall beprovided, used and maintained….whenever it is necessary by reasonof….chemical hazards…encountered in a manner capable of causinginjury or impairment in the function of any part of the body throughabsorption, inhalation or physical contact.The Secretary charges that Pratt & Whitney millwrights in the platingshop were not using chemically impervious suits, aprons, gloves, sleevesand boots during equipment installation work on and around open surfacetanks and pipes containing hazardous chemicals.Foreman observed several solution control employees emptying a tankcontaining nitric acid. The solution control employees were wearing\”aprons, boots, respirators, face shields, gloves, and extensiveprotective equipment…\” (Tr. 344, Exs. C-16, C-17). At the same time,millwrights were working around the same tank. They were disconnectingthe ventilation system from the tank and connecting it to a hoist tolift it and hold it while the tank was being moved and turned. Themillwrights were wearing tyvek suits and goggles (Tr. 344).Millwright Donald Cooper testified that Pratt & Whitney made availableprotective equipment. \”They always had coveralls and the gloves,goggles, face shields–anything you needed.\” (Tr. 971).Pratt & Whitney argues that the Secretary is collaterally estopped fromlitigating whether it was in violation of ? 1910.132(a) because theReview Commission vacated a citation for the violation of ?1910.94(d)(9) in _Pratt_, 12 BNA OSHC 1770. In _Pratt_, the company wascharged with a violation of ?1910.94(d)(9)(iii) and (iv) in that it didnot \”provide\” impervious gloves and aprons for employees working at opensurface tanks.The cited standards provide:(iii) All persons required to handle work wet with a liquid other thanwater _shall be provided_ with gloves impervious to such a liquid and ofa length sufficient to prevent entrance of liquid into the tops of thegloves. The interior of gloves shall be kept free from corrosive orirritating contaminants.(iv) All persons required to work in such a manner that their clothingmay become wet _shall be provided_ with such aprons, coats, jackets,sleeves, or other garments made of rubber, or of other materialsimpervious to liquids other than water, as are required to keep theirclothing dry. Aprons shall extend well below the top of boots toprevent liquid splashing into the boots. Provision of dry, clean,cotton along with rubber shoes or short boots and an apron impervious toliquids other than water shall be considered a satisfactory substitutewhen small parts are cleaned, plated, or acid dripped in open tanks andrapid work is required. (Emphasis added).Sections (iii) and (iv) both mandate that protective equipment \”shall beprovided\” to employees. The Secretary argued in Pratt that ??1910.94(d)(9)(iii) and (iv) should be construed to require the use ofprotective equipment. The Review Commission rejected this argument,holding that the word \”provide\” is not ambiguous and could not bestrained to mean \”use\”. \”The Commission, as an adjudicatory body,lacks authority to rewrite the standards and may not impose on them ameaning that would deprive employers of fair notice of the conductrequired or prohibited.\” _Id._, 12 BNA OSHC at 1776. Because theevidence was undisputed in _Pratt_, as in the present case, thatprotective equipment was available to the employees, the citation forfailure to provide protective equipment was vacated.In the present case, Pratt & Whitney was cited under ? 1910.132(a),which requires that protective equipment be \”provided, used, andmaintained.\” Because this standard explicitly mandates that protectiveequipment be used as well as provided, it is not the identical issue aswas litigated in _Pratt_. Absent identical issues, a collateralestoppel claim must fail.Pratt & Whitney raises a further argument that has more merit. Thecompany argues that ?? 1910.94(d)(9)(iii) and (iv) are specificstandards that address protective equipment repaired for employeesworking around open surface tanks. Section 1910.94(d) is captioned\”Open surface tanks\” and ? 1910.94(d)(9) is captioned \”Personalprotection.\” Section 1910.132(a) is a general standard which iscontained within Subpart I, \”Personal Protective Equipment,\” and iscaptioned \”General requirements.\”29 C.F.R. ? 1910.5(c)(1) provides in pertinent part:If a particular standard is specifically applicable to a condition,practice, means, method, operation, or process, it shall prevail overany different general standard which might otherwise be applicable tothe same condition, practice, means, method, operation or process.29 C.F.R. ? 1910.5(c)(2) provides:On the other hand, any standard shall apply according to its terms toany employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in SubpartB or Subpart R of this part, to the extent that none of such particularstandards apply.It must be determined whether ? 1910.94(d)(9) is \”specificallyapplicable\” to the cited condition. The hazard at issue is exposure tohazardous chemicals in and around open surface tanks. The Secretaryspecifically cited Pratt & Whitney for failure of its employees to use\”chemically impervious suits, aprons, gloves, sleeves, and boots.\” Section 1910.132(a) requires the use of \”personal protective equipmentfor eyes, face, head, and extremities…whenever it is necessary byreason of…chemical hazards…\” Section 1910.94(d)(9)(iii) and (iv)specifically require the employer to provide employees working aroundopen surface tanks with gloves, aprons, coats, jackets, sleeves, andboots. Sections 1910.94(d)(9)(iii) and (iv) are clearly more specificto the cited condition than ? 1910.132(a).The Secretary cites _Bratton Corp._, 14 BNA OSHC 1893, 1990 CCH OSHD ?29,152 (No. 83-132, 1990), for the proposition that, where the \”morespecific\” standard fails to prevent certain hazards, the \”general\”standard applies if it provides the protection that the \”more specific\”standard omits. In _Bratton_, the employer was a steel erectioncontractor. It was charged with a violation of ? 1926.28(a),[[3]] ageneral standard requiring the wearing of personal protectiveequipment. _Bratton_ argued that ? 1926.28(a) did not apply because itwas preempted by ? 1926.750(b)(2)(i),[[4]] a specific steel erectionstandard. The Review Commission ruled that the general standard wasapplicable in that case because ? 1926.750(b)(2)(i) addressed onlyinterior fall hazards, affording no protection against exterior fallhazards.The Review Commission held:We agree with the various appellate court decisions that have drawn adistinction between interior and exterior fall hazards and hold that thesteel erection standards in Subpart R do not preempt application of thegeneral construction standards to steel erection work \”where generalstandards provide meaningful protection to employees beyond theprotection afforded by the steel erection standards… _WilliamsEnterprises, Inc._, 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD ? 26,542,p. 33,877 (No. 79-843, 1983), _aff’d in pertinent part_, 744 F.2d 170(D.C. Cir. 1984).Bratton, 1990 CCH OSHD at p. 38,992.The Secretary argues that there is a distinction between the hazardsaddressed by ? 1910.132(a) and ? 1910.94(d)(9)(iii) and (iv). TheSecretary states that item 3 \”is not confined to work around opensurface tanks in plating operations and the attendant dripping andsplashing hazard. It pertains to ’employees during _equipmentinstallation on and around_ open surfaces, tanks _and pipes_ containinghazardous chemicals.’ (Secretary’s brief, p. 14, emphasis in original). Apparently the Secretary considers the addition of the words\”equipment installation work\” and \”pipes\” in the citation tosignificantly alter the meaning of in and around open surface tankoperations contained in ? 1910.94(d). The undersigned disagrees. Thehazard presented in both cases is contact with hazardous chemicals. Thephrase \”equipment installation work on and around open surface tanks andpipes\” encompasses \”in and around open surface tank operations.\”The general personal protection equipment standard, ? 1910.132(a) ispreempted by the more specific standard, ? 1910.94(d)(9)(iii) and (iv),as provided for in ? 1910.5(c)(1). Item 3 is vacated.Even if the cited standard was not preempted by ? 1910.94(iii) and (iv),item 3 would still be vacated because Pratt & Whitney was denied fairnotice. \”An employer lacking fair notice of a standard cannot be foundin violation of the act for failure to comply with that standard.\” _Bratton_, 1990 CCH OSHD at p. 38, 992. In _Pratt_, the company wascharged with the failure to require its employees to use gloves andaprons, just at Pratt & Whitney was charged in the present case. Thestandards cited were ?? 1910.94(d)(9)(iii) and (iv). The ReviewCommission vacated the items, holding that the standards \”require onlythat….protective equipment must be made available.\” _Pratt_, 12 BNAOSHC at 1776.It was entirely reasonable for Pratt & Whitney to assume, based on the_Pratt_ decision, that it was not required by the Act to ensure that itsemployees actually used protective equipment, but was only required tomake such equipment available. To charge Pratt & Whitney with the sameviolation using a different standard violates its right to fair notice.The purpose of OSHA is to obtain safe and healthful working conditionsthrough promulgation of occupational safety and health standards whichtell employers what they must do to avoid hazardous conditions. Tostrain the plain and natural meaning of words for the purpose ofalleviating a perceived safety hazard is to delay the day when theoccupational safety and health regulations will be written in clear andconcise language so that employers will be better able to understand andobserve them._Diamond Roofing_, 528 F.2d 645, 650 (5th Cir. 1976).In _Pratt_, the Review Commission noted that the Secretary \”could havepromulgated a standard imposing a use requirement as suggested by theSecond Circuit in a case involving a similar standard…\”_Pratt_, 12 BNAOSHC at 1775. Her failure to do so cannot be remedied by substitutinga general standard requiring use of a more specific standard thatrequires only availability. Pratt & Whitney was not in violation of ?1910.132(a)._ITEM 4: 29 C.F.R. ? 1910.133(a)(1)_29 C.F.R. ? 1910.133(a)(1) provides:Protective eye and face equipment shall be required where there is areasonable probability of injury that can be prevented by suchequipment. In such cases, employers shall make conveniently availablea type of protector suitable for the work to be performed, and employersshall use such protectors. No unprotected person shall knowingly besubjected to a hazardous environmental condition. Suitable eyeprotectors shall be provided where machines or operations present thehazard of flying objects, glare, liquids, injurious radiation, or acombination of these hazards.The Secretary alleges that protective face shields were not use byemployees during equipment installation work on and around open surfacetanks and pipes containing hazardous chemicals. The solution controlemployees who were emptying the tank containing nitric acid were wearingfull-face piece respirators with a face protection on them (Ex. C-16,Tr. 361). Millwrights working around the same tank were wearing onlygoggles (Ex. C-11, Tr. 363-364).In dealing with open surface tanks, reference must be made to ?1910.94(d)(9)(v), which provides:Whenever there is a danger of splashing, for example, when additions aremade manually to the tanks, or when acids and chemicals are removed fromthe tank, the employees so engaged shall be required to wear eithertight-fitting chemical goggles or an effective face shield. _See_ ?1910.133.Section 1910.94(d)(9)(v) requires that either goggles or face shields beworn by employees working around open surface tanks. The Secretaryargues that \”this provision should not be interpreted as giving theemployer the option of requiring the use of one or the other.\” (Secretary’s brief, p. 17). Pratt & Whitney takes issue with theSecretary’s interpretation of the standard.As with item 3, _supra_, the question of fair notice is raised regardingthis item. In two previous cases to which Pratt & Whitney was a party,it was found in violation of ? 1910.94(d)(9)(v) for failing to requireits employees to wear either goggles or face shields. In _Pratt &Whitney_ _Aircraft_, 9 BNA OSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401,1981), the company was found in violation for failing to require the useof either goggles or face shields by its employees who were workingaround open surface tanks in the plating department. Having been issueda Review Commission decision explicitly stating that employees workingaround open surface tanks in the plating department must wear eithergoggles or face shields, it was only reasonable for Pratt & Whitney toassume that it was on safe ground requiring its employees to wear one orthe other of these protective devices as such circumstances. Employersshould be able to place some reliance on Review Commission decisions,especially when they involve the same employer in similar circumstances.To hold Pratt & Whitney in violation of ? 1910.133(a)(1) in thisinstance would be to work an injustice on the company. The undersigneddeclines to do so. Pratt & Whitney was not in violation of ?1910.133(a)(1)._ITEM 5: 29 C.F.R. ? 1910.134(e)(3)_29 C.F.R. ? 1910.134(e)(3) provides:Written procedures shall be prepared covering safe use of respirators indangerous atmospheres that might be encountered in normal operations orin emergencies. Personnel shall be familiar with these procedures andthe available respirators.During his inspections, Foreman observed two empty boxes outside thewall to the plating department. At one time the boxes had containedself-contained breathing apparatuses (SCBAs) (Ex. C-18, Tr. 387). TheSCBAs had been removed from the plating department sometime in 1988 andgiven to the fire department (Tr. 1287). A sign on the cabinetsinformed employees the SCBAs were removed and to call the firedepartment in the event of an emergency (Ex. C-18, Tr. 390). The SCBAshad been removed because the company determined that it preferred to useemergency personnel (Tr. 1287-1289).The fire department is a separate department within the facility. Foreman did not inspect or try to determine what procedures wereavailable in the fire department regarding the SCBAs (Tr. 543, 1199).The Secretary has failed to establish a violation of this standard. Ifno SCBAs are available for use, no written procedures are required. The Secretary failed to prove that the fire department, which did haveSCBAs, did not have the written procedures covering their use. Pratt &Whitney was not in violation of ? 1910.134(e)(3)._ITEM 6a: 29 C.F.R. ? 1910.145(c)(2)(i)_29 C.F.R. ? 1910.145(c)(2)(i) provides:Caution signs shall be used only to warn against potential hazards or tocaution against unsafe practices.Pratt & Whitney had caution signs posted at both entrances to theplating shop (Exs. C-21, R-7, R-8, Tr. 582). At one entrance of theplating shop, the caution sign reads, \”Caution, safety glasses requiredin this area.\” (Ex. R-7, Tr. 580-581). At the other entrance to theplating shop are a caution sign and a notice that reads, \”Safety controlarea, see foreman before entering.\” (Ex. R-8, Tr. 582). Foremantestified, and the Secretary argues, that an adequate warning should atleast have said \”caution, chemical hazard area.\” (Tr. 414).The cited standard does not mandate specific language to be used on thewarning signs. Pratt & Whitney cannot be held in violation of ?1910.145(c)(2)(i) merely because it did not foresee the exact wordingthat Foreman would deem appropriate. Whether Pratt & Whitney violatedthe standard must be determined by looking at the adequacy of the signsit actually did post.The standard provides that caution signs shall be used to \”warn againstpotential hazards\” or \”to caution against unsafe practices.\” Pratt &Whitney’s sign warning, \”Caution, safety glasses required in this area,\”is a sign warning against an unsafe practice, i.e., not wearing safetyglasses. The sign stating, \”Safety control area, see foreman beforeentering,\” falls into the first category as a warning against potentialhazards.Is \”Caution, safety control area\” adequate to meet the requirements of ?1910.145(c)(2)(i)? The Secretary would have accepted \”Caution, chemicalhazard area.\” The difference then, is between the words \”safetycontrol\” and \”chemical hazard.\” While the latter is more specific as tothe nature of the potential hazard, \”Caution, safety control area\” putsany employee reading the sign on notice. \”Safety control area\” impliesthat there is a reason for safety control, namely a hazardouscondition. Combined with the word \”caution,\” a reasonable person wouldbe warned that some potential hazard was present. Perhaps the warningis not as detailed as the Secretary wants, but the standard is worded invery broad terms. If the Secretary wants to require signs stating\”chemical hazard area\” in areas where chemical hazards exist, she mustmake the standard more explicit. \”The responsibility to promulgateclear and unambiguous standards is upon the Secretary. The test is notwhat he might possibly have intended, but what he said. If the languageis faulty, the Secretary has the means and the obligation to amend.\” General Electric Co. v. OSHRC, 583 F.2d 61, 67 (2nd Cir. 1978) (quotingBethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978).Pratt & Whitney was not in violation of ? 1910.145(c)(2)(i)._ITEM 6b: 29 C.F.R. ? 1910.145(c)(3)_29 C.F.R. ? 1910.145(c)(3) provides:Safety instruction signs shall be used where there is a need for generalinstructions and suggestions relative to safety measures.Pratt & Whitney had labels posted on each tank, identifying the tank’scontents. As noted in the discussion of item 1, supra, the maintenanceemployee did not understand how to read the labeling system. Themaintenance personnel were the very employees who most need generalinstructions as to safety measures, because they were the ones mostunfamiliar with the chemical hazards. As was made evident byMousseau’s and Brockett’s reaction to being splashed with the cyanidesolution, suggestions relative to safety measures were needed.Pratt & Whitney was in serious violation of ? 1910.145(c)(3)._ITEM 7: 29 C.F.R. ? 1910.145(f)(5)_29 C.F.R. ? 1910.145(f)(5) provides:Danger tags shall be used in major hazard situations where an immediatehazard presents a threat of death or serious injury to employees. Danger tags shall be used only in these situations.No danger tag was placed on the pump for tank D-1 after it wasdisconnected. On August 23, 1989, the electrician Stoeffel activatedthe pump, resulting in Mosseau and Brockett getting splashed with thecyanide solution.Pratt & Whitney argues that the standard is inapplicable to thesituation at issue because it was not a \”major hazard\” situation where\”an immediate hazard presents a threat of death or serious injury toemployees.\” This Court concludes that no \”immediate hazard\” was presented.As long as the pump was not activated, there was no hazard to anyone ofbeing splashed by the cyanide solution. \”Immediate\” connotes a suddenevent with no lapse of time. It took the intervening force of theelectrician to cause the hazard to the employee.Support of this interpretation can be found elsewhere in the standard. Section 1910.145(f)(6) provides:Caution tags shall be used in minor hazard situations where anon-immediate or potential hazard or unsafe practice presents a lesserthreat of employee injury. Caution tags shall be used only in thesesituations.Section 1910.145(f)(7) provides:Warning tags may be used to represent a hazard level between \”Caution\”and \”Danger,\” instead of the required \”Caution\” tag, provided that theyhave a signal word of \”Warning,\” an appropriate major message, andotherwise meet the general tag criteria of paragraph (f)(4) of this section.A warning tag, rather than a danger tag, would have been the moreappropriate tag in this instance. The warning tag standard requires \”anappropriate major message.\” Reference to the definition section of thestandard at ? 1910.145(f)(2) reveals that \”major message\” is defined as\”that portion of a tag’s inscription that is more specific than thesignal word and that indicates the specific hazardous condition or theinstruction to be communicated to the employee. Examples include:….\”Do Not Start,\” or \”Do Not Use\”…..A warning tag containing the major message \”Do Not Activate\” was clearlymore appropriate to the disconnected pump on tank D-1 than was a dangertag. Use of a danger tag would have constituted a violation of ?1910.145(f)(5), which states that danger tags shall be used only inmajor hazard situations where an immediate hazard exists.Pratt & Whitney was not in violation of ? 1910.145(f)(5)._ITEM 8b: 29 C.F.R. ? 1910.1200(f)(5)(i)_29 C.F.R. 1910.1200(f)(5)(i) provides:Except as provided in paragraphs (f)(6) and (f)(7) the employer shallensure that each container of hazardous chemicals in the workplace islabeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s) contained therein…….In item 8b(a), the Secretary alleged that Pratt and Whitney had severalcontainers which were not labeled with appropriate hazard warningsidentifying hazardous chemicals contained therein. The citationspecified the following containers as lacking adequate labels: NipositNL-62R, ExMac 64 Reducer, Plastisol, Cupric Sulfate, Edwal HardenerFixer, Picard Acid Wetting Agent, PMC 1609-2, Edwal Quick Fix, PMC1632-1, Barrett Snac, and 9 PMC-1622-1.Foreman observed containers of Niposit NL-62R and Ex Mac 64 Reducer (Ex.C-21). After looking at the Material Safety Data Sheets (MSDSs),Foreman determined that the two containers lacked adequate warninglabels (Tr. 436-438). These containers were labeled with themanufacturer’s labels (Tr. 438, 594).As Pratt & Whitney points out, ? 1910.1200(d)(1) provides:(emphasis added):Chemical manufacturers and importers shall evaluate chemicals producedin their workplaces or imported by them to determine if they arehazardous. _Employers are not required to evaluate chemicals unlessthey choose not to rely on the evaluation performed by the chemicalmanufacturer or importer for the chemical to satisfy this requirement._Because it is undisputed that it was the manufacturer’s labels on thecontainers of Niposit NL-62R and Ex Mac 64 Reducer, Pratt & Whitneycannot be held liable for the inadequate labels.Exhibit C-22 shows a five-gallon jug labeled plastisol PMC-1671, and \”inhouse\” container that had no hazard warning label at all. TheSecretary failed to prove that the plastisol container contained ahazardous chemical (Tr. 446-451). Therefore, Pratt & Whitney cannot beheld in violation for failure to label this container.Exhibit 23 shows a container of cupric sulfate PMC-1322. TheManufacturer’s label did not contain warnings of hazards listed in thechemical’s MSDS (Tr. 452). As it was labeled by the manufacturer, Pratt& Whitney is not responsible for any of the label’s defects.The MSDS for Edwal Hardener Fixer indicates that it contains sulfuricacid, acetic acid, and aluminum sulfate, which can cause severeirritation to the nose, mouth, skin, and respiratory system. There wasno warning label whatsoever on the container (Tr. 455). Pratt & Whitneyis responsible for the failure to label this container.The Picard Acid Wetting Agent was labeled with an inadequatemanufacturer’s label, for which Pratt & Whitney was not responsible (Tr.456).Exhibit C-25 shows two five-gallon plastic pails labeled PMC-1632 (Tr.464). PMC-1632 contains non-ionic polyoxyethylated detergent, which isa skin and eye irritant. There were no warning labels on the container(Tr. 465).Exhibit C-24 shows a container of Edwal Quick Fix. The manufacturer’slabel is covered over with a Pratt & Whitney label (Tr. 461). Becausethis container is one of the containers at issue in item 8c, it will notbe considered here.Exhibit C-26 shows a container of Barrett Snac with a manufacturer’slabel on it (Tr. 465-467). Any defects in the label are theresponsibility of the manufacturer.Exhibit C-27 shows a container marked 9 PMC-1622-1. It is labeled witha Pratt & Whitney label and contains no hazard warning. The substanceis Agent\/Wetting – for acid cleaners. The Secretary did not have anMSDS for the substance. Any hazards that the substance may present werenot brought out at the hearing (Tr. 467-468).Of the substances listed in the citation, only two, Edwal HardenerFixant and PMC 1632-1, had defective labels which were Pratt & Whitney’sresponsibility. These two substances posed threats of respiratory,skin, and eye irritation.Item 8b(b) alleges that certain tanks and a bottle in the plating shopwere not identified with appropriate hazard warnings.Pratt & Whitney conceded that the bottle labeled PS 607 was labeledincorrectly (Ex. C-35). The bottle contained chromic acid and shouldhave been labeled with an asterisk and a reactivity rating of 1 or 2instead of a 0 (Tr. 511-512, 1050-1051).Foreman testified that tank F-2, which contained hydrochloric acid,should have been marked with a reactivity rating of 2 instead of 0 (Ex.C-28, Tr. 471), and tank H-3, containing nitric acid solution, shouldhave a reactivity rating of 1 or 2 instead of 0 (Ex. C-9, Tr. 475-477).Tank H-5 contained electroless nickel plating solution (Ex. C-30, Tr.480). It should have been marked with a higher reactivity rating than 0(Tr. 481).Lynn Hamel is an industrial hygienist for Pratt & Whitney (Tr.993-994). She is in charge of the company’s hazardous materialsidentification system (HMIS) (Ex. R-14, Tr. 1004). Pratt & Whitney usesnumerical ratings for reactivity which are set by the National FireProtection Association (NFPA). Hamel testified that she used noindependent judgment in assigning the ratings; they are taken directlyfrom NFPA standard 704 (Ex. R-14, Tr. 1013).The Secretary offered no evidence other than Foreman’s testimony thatthe reactivity ratings were inaccurate. His testimony alone, whencountered by Hamel’s testimony and Exhibit R-14, does not meet theSecretary’s burden of proof. It cannot be determined from the recordwhether or not the reactivity ratings were too low.The Secretary has established with regard to item 8b that Pratt &Whitney failed to have adequate hazard warnings for two chemicalsubstances, both of which had the potential to cause skin, eye, andrespiratory irritation. Pratt & Whitney is in serious violation forthose substances only._ITEM 8c: 29 C.F.R. ? 1910.1200(f)(8)_29 C.F.R. 1910.1200(f)(8) provides:The employer shall not remove or deface existing labels on incomingcontainers of hazardous chemicals, unless the container is immediatelymarked with the required information.The Secretary charges that Pratt and Whitney had containers ofhydrochloric acid, hydrofluoric acid, and Edwal Quick Fix on which thelabels were defaced.Exhibit C-24 shows a container of Edwal Quick, which contains aceticacid, sodium thiosulfate, ammonium thiosulfate, and boric acid. ThePratt & Whitney label covered the back of the manufacturer’s label (Tr.461-463). Exhibit C-31 shows a hydrochloric acid container with alabel written over in magic marker. Exhibit C-32 shows plastic jugs ofhydrofluoric acid with white stickers over the labels of two of them(Tr. 482). The Secretary has established that the foregoing labels wereobscured and did not convey an adequate warning.Pratt & Whitney was in serious violation of ? 1910.1200(f)(8)._ITEM 9: 29 C.F.R. 1910.1200(h)_29 C.F.R. 1910.1200(h) provides:Employers shall provide employees with information and training onhazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard is introduced into their work area.(1) _Information_. Employees shall be informed of:(i) The requirements of this section;(ii) Any operations in their work area where hazardous chemicals arepresent; and,(iii) The location and availability of the written hazard communicationprogram, including the required list(s) of hazardous chemicals, andmaterial safety data sheets required by this section.(2) _Training_. Employee training shall include at least:(i) Methods and observations that may be used to detect the presence orrelease of a hazardous chemical in the work area (such as monitoringconducted by the employer, continuous monitoring devices, visualappearance or odor of hazardous chemicals when being released, etc.);(ii) The physical and health hazards of the chemicals in the work area;(iii) The measures employees can take to protect themselves from thesehazards, including specific procedures the employer has implemented toprotect employees from exposure to hazardous chemicals, such asappropriate work practices, emergency procedures, and personalprotective equipment to be used; and,(iv) The details of the hazard communication program developed by theemployer, including an explanation of the labeling system and thematerial safety data sheet, and how employees can obtain and use theappropriate hazard information.Pratt & Whitney had a very good written hazard communication trainingprogram. Dr. Isabel Perry put together and implemented the program,which included a booklet of MSDSs (Exhibit R-1) and training sessionsconducted by Dr. Perry (Tr. 1271). The course was approximately twohours long and was offered every thirty days. Dr. Perry used slides inthe course and administered a questionnaire afterwards (Exs. R-25, R-26,Tr. 1271, 1273, 1275, 1277).Despite the quality of the written hazard communication program, therewas an apparent problem with its communication to Pratt and Whitney’semployees. Foreman questioned platers, plumbers, electricians, and theelectrical, pipefitting, and plating shop supervisors (Tr. 287). Foreman found that there were a number of inadequacies in the employees’training. Most employees were aware of the hazard communication programbut many did not know where to find it. Many were not aware of the MSDSsystem. Some were unsure of the numerical hazard rating system. Manydid not understand what an \”S\” meant (\”Refer to supervisor\”) or whatprotective equipment they should wear in specific situations. Theywere unaware of the carcinogens they were working with (Tr. 289-291). Platers told of sticking their bare hands into tanks containing nickelto neutralize chemicals they got on their hands. Skin lesions candevelop from such a practice (Tr. 493-495).Most of the employees did not understand the labeling system. They wereunaware of the meaning of an asterisk on a warning label (indicating achronic health hazard) (Tr. 295).The Secretary has established that Pratt & Whitney was in seriousviolation of ? 1910.1200(h)._PENALTY DETERMINATION_The Commission is the final arbiter of penalties in all contestedcases. _Secretary v. OSAHRC and Interstate Glass Co._, 487 F.2d 438(8th Cir. 1973). Under 17(j) of the Act, the Commission is required tofined and give \”due consideration\” to the size of the employer’sbusiness, the gravity of the violation, the good faith of the employer,and the history of previous violations in determining the appropriatepenalty.Pratt & Whitney employed approximately 8,000 employees. No history ofprevious violations at that particular facility was shown and no basiswas given for doubting Pratt & Whitney’s good faith. All of theviolations that the Secretary established posed potential hazards ofdeath or serious physical harm. After due consideration, the followingpenalties are deemed appropriate:_Item_ _Penalty_1 $1,0006b 5008b 1008c 1009 1,000_FINDINGS OF FACT AND CONCLUSIONS OF LAW_The foregoing decision constitutes the findings of facts and conclusionsof law in accordance with Federal Rule of Civil Procedure 52(a)._ORDER_Based upon the foregoing decision, it is hereby ORDERED that the itemscontained in Citation No. 1 shall be disposed of as follows:_ITEM_ _DISPOSITION_ _PENALTY_1 Affirmed $1,0002 Vacated -0-3 Vacated -0-4 Vacated -0-5 Vacated -0-6a Vacated -0-6b Affirmed 5007 Vacated -0-8a Vacated -0-8b Affirmed as to 100 Edwal Hardene Fixant, PMC-1632, and PS 6078c Affirmed 1009 Affirmed 1,000Dated this 24th day of October, 1991.EDWIN G. SALYERSJudge————————————————————————FOOTNOTES:[[1]] At the time of the splashing incident, the tank was designated asE-3. Due to its relocation during the renovation, it was subsequentlydesignated as D-1. The tank was referred to as D-1 throughout much ofthe testimony. For the purposes of this decision, it shall beunderstood that E-3 and D-1 refer to the same tank.[[2]] Rule 36(b)(1) provides in pertinent part:The employer shall state in its answer in separate numbered paragraphsany matter that may constitute…an affirmative defense…..Such mattersinclude, but are not limited to, the following: …..res judicata……..[[3]] 29 C.F.R. ? 1926.28(a) provides:The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[4]] 29 C.F.R. ? 1926.750(b)(2)(i) provides:Where skeleton steel erection is being done, a tightly planked andsubstantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor, in preparation fortransferring such planks for use on an upper floor. Where such a flooris not practicable, paragraph (b)(1)(ii) of this section applies.`”